Sturdivant v. Moore, A06A2077.

• Citation: 640 S.E.2d 367,282 Ga. App. 863
• Decision Date: 13 December 2006
• Docket Number: No. A06A2077.,A06A2077.
• Parties: STURDIVANT v. MOORE.
• Court: United States Court of Appeals (Georgia)

282 Ga. App. 863

640 S.E.2d 367

STURDIVANT v. MOORE.

No. A06A2077.

Court of Appeals of Georgia.

December 13, 2006.

Murphy A. Cooper, Savannah, for appellant.

Jordon D. Morrow, Mark H. Glidewell, Brannen, Searcy & Smith, Savannah, for appellee.

SMITH, Presiding Judge.

This is an appeal from the grant of summary judgment in favor of the defendant in a premises liability case. Lonnie Sturdivant ("Sturdivant") was attending a Fourth of July party at the home of appellee Robert Moore when he was found unconscious at the bottom of Moore's swimming pool, could not be revived, and later died. Appellant Hagger Sturdivant ("Ms. Sturdivant"), his surviving spouse, filed this action alleging that Moore was negligent in failing to keep the premises safe. After discovery, the trial court granted Moore's motion for summary judgment, and Ms. Sturdivant appeals. Because Ms. Sturdivant has failed to show any causal connection between the alleged defect in the premises and the decedent's death, we affirm.

Construed in favor of the respondent, the evidence shows that Sturdivant had never visited Moore's house before. He arrived at Moore's Fourth of July party about 6:00 p.m. He immediately changed into his swim trunks and began swimming and diving into the pool. Other partygoers and the host saw him repeatedly dive from the diving board into the pool and swim across the pool without distress or difficulty. Sturdivant was 44 years old and a good swimmer.

Some time later in the evening, Sturdivant's body was discovered on the bottom of the pool. He was pulled from the water and a guest administered CPR; he was transported to the hospital but never regained consciousness. Life support was removed several days later.

The basis of liability proposed by Ms. Sturdivant is Moore's failure to turn on the pool's interior light at some earlier time, arguably making it more difficult to see a person in distress. The trial court granted summary judgment on the ground that Sturdivant had equal or superior knowledge of the conditions in and around the pool yet chose to continue to swim. Both here and below, Ms. Sturdivant relies almost entirely on Coates v. Mulji Motor Inn, 178 Ga.App. 208 342 S.E.2d 488 (1986), in which this court reversed a grant of judgment notwithstanding the verdict. The plaintiffs in that case asserted that the condition of a motel swimming pool, including poor lighting, contributed to the death of the decedent. In its order in this case, the trial court correctly pointed out that Coates was decided by a deeply divided court, with only three judges concurring in the entire majority opinion, one concurring in Division 2 and the judgment, two concurring in the judgment only, two dissenting, and one concurring only in the judgment of the dissent. Coates is therefore physical precedent only, not binding precedent. Court of Appeals Rule 33(a).¹

Moreover, Coates involved an invitee who drowned in a motel swimming pool rather than a social guest at a private home. Sturdivant, as a social guest, was a licensee, and under Georgia law the landowner owed a duty to him not to injure him wilfully or wantonly. Hemphill v. Johnson, 230 Ga. App. 478, 481(2), 497 S.E.2d 16 (1998). In Hemphill, we observed: "The existence and condition of [the] pool was open and obvious. Further, a swimming pool is not per se a mantrap. [Cit.]" Id.

Here, however, we need not decide whether Moore as a private homeowner had a legally enforceable duty to turn on the interior pool light at some point during the approximately three hours between the time Sturdivant began swimming and the onset of darkness.² Nor need we decide if Sturdivant's knowledge of lighting conditions around the pool was equal or superior to that of Moore, as the trial court found. "[A] judgment right for any reason will be affirmed on appeal." (Citation, punctuation and footnote omitted.) Hall v. Coleman, 264 Ga.App. 650, 653(1), 592 S.E.2d 120 (2003). In this case, we affirm because Ms. Sturdivant has failed to show a causal connection between any breach of duty on the part of Moore and Sturdivant's death.

Ms. Sturdivant argues that Moore's failure to turn on the interior pool light at some earlier time prevented someone from seeing her husband earlier and rescuing him in time to prevent injury or death. But this argument is based upon assumptions and speculation rather than the facts established by the record. No witness testified to the exact time at which Sturdivant was discovered, nor to the time at which he was last seen swimming and diving normally. The person who removed him from the pool did not testify.

Several guests were able to describe only the general light conditions at or around the time Sturdivant was found. One witness testified that "it hadn't gotten dark. It was just dusk to dark" when he was found. This witness spoke briefly to Mr. Sturdivant in the shallow end of the pool when he arrived, and she did not see him after that, although she did see him dive into the pool once. She declined to say exactly how long he had been underwater; she "couldn't tell you exactly how long he was in there. I just don't remember seeing him." Another witness stated that a child told...